Yes, Virginia, Substantial Constitutional Questions Do Exist!

A party has an appeal of right to our Supreme Court from certain decisions of the Court of Appeals under N.C. Gen. Stat. § 7A-30. The overwhelming majority of those appeals of right are taken from Court of Appeals decisions in which there was a dissent. N.C. Gen. Stat. § 7A-30(2). Section 7A-30(2) has an oft-forgotten sibling, however. Section 7A-30(1) provides the right to appellate review by the Supreme Court of any decision of the Court of Appeals that “directly involves a substantial question arising under the Constitution of the United States or of this State.” Id.

Filing a notice of appeal pursuant to § 7A-30(1), however, does not automatically bestow on an appellant the right to review by the Supreme Court. The Supreme Court in State v. Colson, 163 S.E.2d 376 (N.C. 1968) underscored that the “[m]ere mouthing of constitutional phrases” will not trigger an appeal of right under § 7A-30(1). Instead, the constitutional question at issue must be “real and substantial,” rather than “superficial and frivolous.” For cases raising “real and substantial” constitutional questions, the case is not officially accepted for appeal until the Supreme Court enters an order “retaining” the case for appellate review under § 7A-30(1). If the Supreme Court does not find a substantial constitutional question, it will dismiss the purported appeal of right without analysis.

A few years back, retired Supreme Court Justice Bob Orr published an article on the history of § 7A-30(1), arguing that the modern Court was underutilizing the statute. See “What Exactly is a ‘Substantial Constitutional Question’ for Purposes of Appeal to the North Carolina Supreme Court?,” 33 Campbell L. Rev. 211 (2010). Justice Orr noted that in the five years preceding his article, the Supreme Court had retained an appeal based on a substantial constitutional question in only two cases. Libertarian Party of N.C. v. State, 690 S.E.2d 700 (N.C. 2010); Riverpointe Homeowners Ass’n v. Mallory, 362 N.C. 474 (N.C. 2008). and appeal dismissed before decision based on parties’ joint motion, 667 S.E.2d 725 (N.C. 2008). My follow-up research uncovered only one additional case from 2005-2015 in which the Supreme Court had retained an appeal based on a substantial constitutional question. State v. Yencer, 364 N.C. 441 (2010). [*For some interesting “factoids” from my research, see the comments (below) to this blog post.]

The mystery surrounding § 7A-30(1)’s “substantial constitutional question” jurisprudence deepened in March 2015 when the United States Supreme Court granted certiorari review in a North Carolina case involving the intersection between government surveillance of sex offenders using GPS and the Fourth Amendment. Grady v. North Carolina, 135 S. Ct 1368, 1370 (2015). A few months earlier, the North Carolina Supreme Court had summarily dismissed the Grady defendant’s § 7A-30(1) appeal as not involving a substantial constitutional question. Grady, 135 S. Ct at 1370 n.* (citing State v. Grady, 367 N.C. 523, 762 S.E.2d 460 (2014)).

This history (or lack thereof) as to what qualifies a substantial constitutional question under § 7A-30(1) may leave the practicing bar scratching its head.

A few weeks ago, however, the Supreme Court of North Carolina reminded North Carolina practitioners that, “Yes, substantial constitutional questions still exist under § 7A-30(1)” when it issued an order retaining a § 7A-30(1) appeal in City of Asheville v. North Carolina.

As is customary, the Supreme Court’s “retention order” did not elaborate on why City of Asheville had achieved gilded “substantial constitutional question” status. However, in addition to the constitutional issues raised by the case, several pragmatic considerations may have been at work. First, the Court allowed the Plaintiff’s petition for discretionary review—an implicit recognition that the appeal also satisfied the § 7A-31 criteria for Supreme Court discretionary review. In a related vein, City of Asheville involves a long-running (and high profile) dispute between the City and the State over who has the right to own and control Asheville’s public water system. Additionally, multiple amici asked the Supreme Court to review the Court of Appeals’ opinion. Moreover, if the case had entered the trial court’s pipeline a few months later, review of the trial court’s order declaring the State statute unconstitutional would likely have proceeded directly to the Supreme Court under amended § 7A-27(a1). Finally, over the past year and a half, the Supreme Court has been pursing Chief Justice Martin’s Administration of Justice Plan, which includes the goal of calendaring more civil appeals for full briefing and oral argument in the Supreme Court.

Time will tell if City of Asheville represents a shift in the Supreme Court’s “substantial constitutional question” jurisprudence, or a once every blue moon occurrence. In the meantime, we would love to know your thoughts! As always, we will keep you posted.

–Beth Scherer

H/T to What’s Fair? blogger Matt Sawchak for bringing the § 7A-30(1) order in City of Asheville to our attention.

*In preparing this blog, I conducted a quick (but not infallible) search for all orders of the North Carolina Supreme Court that contained the phrase “retained by order of the Court in conference.” (This is the modern phrase used in Supreme Court orders retaining a case based on a substantial constitutional question). That search produced 34 Supreme Court orders retaining an appeal based on a substantial constitutional question under § 7A-30(1). Here are some interesting factoids about those 34 orders.

• The 34 orders were issued from 1992 to 2016 (the court likely used a different phrase prior to 1992).
o 25 of the orders were entered in the 1990s (3 in 1992, 3 in 1993; 1 in 1994; 0 in 1995; 12 in 1996; 5 in 1997; 1 in 1998, and 0 in 1999)
o 6 of the orders were entered in the 2000s (0 from 2000-2001, 3 in 2002, 1 in 2003, 1 in 2004, 0 from 2005-2007, 1 in 2008, and 0 in 2009).
o 3 of the orders were entered in the 2010s. (2 in 2010 and 1 in 2016).
• In the 34 orders retaining appeals based on a substantial constitutional question, the Supreme Court also allowed discretionary review in 20 cases, allowed discretionary review as to a single issue but denied review as to the remaining issues in another case, and denied discretionary review in 5 other cases. The remaining 8 orders do not contain any mention of a pending PDR—indicating that the parties likely did not file alternative PDRs with their § 7A-30(1) notices of appeal.
• Ten of the 34 cases involved criminal law appeals in which the State of North Carolina was a party.

I am chagrined to point out one other: Falk v. Fannie Mae, 367 N.C. 487, 487, 769 S.E.2d 625 (2014). The court retained the constitutional question, granted PDR on another issue (equitable subrogration) AND, sua sponte, directed the parties to address another issue that the Supreme Court appellant had explicitly “conceded” at the Court of Appeals. It ultimately reversed on that other issue, thereby mooting the constitutional question.

Hi Beth,
What if the court of appeal itself creats a substantial constitutional question because of overload of cases almost 300 cases per year per panel or other reasons. Can one raise the constitutionality issues of the decision of the court of appeal panel for the first time in Supreme court.

About Our Firm

Fox Rothschild LLP is a national law firm with 900 attorneys practicing in 27 offices coast to coast. We’ve been serving clients for more than a century, and we’ve been climbing the ranks of the nation’s largest firms for many years, according to both The Am Law 100 and The National Law Journal.Read More…